State v. Paden, 35860.

CourtUnited States State Supreme Court of Iowa
Citation202 N.W. 105,199 Iowa 383
Docket NumberNo. 35860.,35860.
PartiesSTATE v. PADEN.
Decision Date10 February 1925


Appeal from District Court, Shelby County; Tom C. Whitmore, Judge.

Defendant was tried and convicted for the crime of conspiracy. From the judgment entered, he appeals. Reversed.Anson H. Bigelow, of Omaha, Neb., John P. Tinley, of Council Bluffs, and John D. Denison, of Des Moines, for appellant.

Ben J. Gibson, Atty. Gen., Frank E. Northrop, Co. Atty., of Council Bluffs, Verne Byers, Co. Atty., of Harlan, and Charles E. Swanson, Special Prosecutor, of Council Bluffs, for the State.


The defendant, M. W. Paden, was jointly indicted with A. R. Drake and John F. Smith by the grand jury of Pottawattamie county, Iowa, for the crime of conspiracy. On motion of the defendant, Paden, a change of venue was granted to Shelby county, and he elected to be tried separately. For the purposes of this opinion the allegations of the charge constitute a sufficient statement of the facts. The indictment alleges that on or about the 29th day of August, 1922, the defendants did willfully, unlawfully, and feloniously conspire and confederate together with the willful, unlawful, and malicious intent and purpose wrongfully to injure the business, property, and rights in property of Harding, Cohn & Smead, a copartnership, as owners of the Liberty Theater in Council Bluffs, Iowa, and to do certain illegal acts injurious to the public health, morals, and police, and to the administration of public justice by then and there mutually conspiring and agreeing to cause and suffer a public nuisance at, in, and about the Liberty Theater building at 547 West Broadway in Council Bluffs. The indictment further alleges a specific overt act on the part of the said defendants in that they did willfully, unlawfully, and maliciously throw certain noisome substances, chemicals, and fluids, emitting foul, offensive, and sickening odors, smells, and gases, dangerous and injurious to the public health and comfort and to said property, upon the doors, floor, walls, and lobby of said theater building, thereby causing a public nuisance as aforesaid, and maliciously injuring said theater building.

The accusation was the outgrowth of an industrial controversy between the managers and the movie operators of certain theaters in Council Bluffs, Iowa. No question arises on the sufficiency of the indictment, and it will be observed that the conspiracy charged requires an overt act to be alleged. Section 13755, Code 1924.

[1] An indictment for public nuisance must allege specific facts and circumstances (State v. Decker & Sons, 197 Iowa, 41, 196 N. W. 600), and the same rule prevails in charging a conspiracy “to cause and suffer a public nuisance.” The statute further provides:

“Upon a trial for conspiracy, a defendant cannot be convicted unless one or more overt acts alleged in the indictment are proved, when required by law to constitute the offense, but other overt acts not alleged in the indictment may be given in evidence.” Section 13902, Code 1924.

However, the overt act to which reference is made in the indictment is not here involved, nor is the sufficiency of the evidence in proof thereof. The state offered evidence of several overt acts not charged in the indictment, and appellant's primary error gravitates around this evidence. Did the court err in admitting evidence relative to certain overt acts without first requiring the state to establish a prima facie case of conspiracy? Was the error, if any, cured by striking said evidence from the record, with the admonition by the court to the jury not to consider same?

[2][3][4][5][6][7][8] A conspiracy involves concert of action; the gist of the crime is the unlawful agreement with intent to do the thing charged in the indictment. Proof of the overt act charged is not sufficient per se to warrant a conviction. It is probative, but not conclusive. Briefly stated, it is competent to prove overt acts, with other facts and circumstances, for the purpose of showing the common intent entertained by the defendants. State v. Madden, 170 Iowa, 230, 148 N. W. 995. The trial court recognized this rule, and instructed the jury that:

“The doing of such overt act did not constitute the crime charged in the indictment, unless there was an agreement and confederation between the defendant, M. W. Paden, A. R. Drake, and John F. Smith, or either of them to do such act prior to the time such act was done, if it was done.”

This was the law of the case. It is the law of the state. A conspiracy necessarily involves two persons, and neither the nature nor the essence of the crime can be established by the acts or declarations of one conspirator in the absence and without the knowledge and concurrence of the other. State v. Manning, 149 Iowa, 205, 128 N. W. 345. The competency of such testimony is dependent on a proper foundation having been laid. In other words, a prima facie case of conspiracy must be established. State v. Caine, 134 Iowa, 147, 111 N. W. 443;State v. Wheeler, 129 Iowa, 100, 105 N. W. 374;State v. Soper, 118 Iowa, 1, 91 N. W. 774. We have held that the order in which evidence of this character may be introduced rests in the sound discretion of the trial court. State v. Walker, 124 Iowa, 414, 100 N. W. 354. We have also held that the better practice is to require a prima facie showing of conspiracy before receiving such evidence. State v....

To continue reading

Request your trial
1 cases
  • State v. Paden, 35860
    • United States
    • United States State Supreme Court of Iowa
    • 10 d2 Fevereiro d2 1925
    ...202 N.W. 105 199 Iowa 383 STATE OF IOWA, Appellee, v. M. W. PADEN, Appellant No. 35860Supreme Court of Iowa, Des MoinesFebruary 10, Appeal from Shelby District Court.--TOM C. WHITMORE, Judge. DEFENDANT was tried and convicted for the crime of conspiracy. From the judgment entered, he appeal......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT